In response to very public investigations by the Office of Civil Rights at the Department of Education, colleges and universities have been reviewing and revising their Title IX policies and protocols.  Title IX compliance, in the context of allegations of student sexual misconduct, is tough.

Just how tough it is to get right is exemplified by the current standoff at Harvard between its law professors and administration.

In response to Harvard’s issuance of a new sexual misconduct policy, 28 law professors signed a letter claiming Harvard’s new “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”  The letter was published in The Boston Globe on Wednesday.

A little further south, another Title IX drama is playing out real time at FSU as FSU struggles through how to handle the sexual assault allegations that have been made against star football player Jameis Winston.

Here today to share her insights and commentary about the FSU matter is guest blogger Jennifer Keaton, Esq.

FSU: Speedy Trials and Cutting Your Losses

by Guest Blogger Jennifer Keaton, Esq.

Is Jameis Winston (and, frankly, the victim) entitled to a speedy trial as it relates to the charges of sexual assault?

Under the U.S. Constitution, individuals charged with crimes do have a right to a speedy trial. Of interest in Winston’s case is that it is FSU (and not Tallahassee law enforcement) that is getting grilled about how fast it is moving on these allegations as it pertains to Student Winston (as opposed to Citizen Winston).

Here’s the rub: Colleges and Universities (and even with some employers in a different context) have internal procedures and systems in place that help them properly and fairly monitor their population’s interactions. Such systems are often less formal that the judicial systems….and they’re supposed to be faster than the judicial system.

Here, FSU has arguably set itself up for harsh scrutiny and, if they get this wrong, they may face liability and create a catalyst for the federal government to prescribe a system for them (and everyone else). The obvious pot-shot is that FSU is not moving fast enough (and perhaps hasn’t moved fast enough) because of an underlying desire to keep Winston through to the end of the football season (or until it is clear that FSU’s Football team is not going to be a real contender for a title of some sort).

At this point, the lawyers have taken over the school’s process and, because the system was created by well-intentioned people and not people thinking about how the system could be played like a fiddle by lawyers, FSU is basically assured that Winston will complete the Season. Indeed, despite the upcoming student judiciary hearing, ESPN is reporting that Winston is expected to play for No. 2 Seminoles in Saturday’s games against No. 5 Notre Dame.  ESPN is also reporting that Winston will proceed with the disciplinary hearing although Winston’s attorney continues to criticize the process FSU has put in place.

Suddenly the legitimacy of FSU’s system is in the hands of a hearing officer who is likely to be a retired Florida supreme court judge. Sounds impressive, doesn’t it?

But the reality is that no one has stopped to consider whether a retired appellate court judge really has what it takes to preside over this proceeding, much less make fast decisions (anyone got the average response time on Florida supreme court decisions?), or manage (over)zealous attorneys who have their own agendas?

Sadly, what is more likely to happen here is that Winston is going to engage in a new incident of misconduct that will get him expelled outright and solve this problem in a decidedly different way. All of this gnashing of teeth will be for naught (at least among the lawyers).

And, then, Winston will only be concerned with a speedy criminal trial, for which Florida taxpayers will still be on the hook for the costs. FSU: It’s Time to Cut Your Losses.

About the Author:  Jennifer Keaton is Vice-President of Workplace Investigations Group. She has represented large and small employers in both state and federal forums for over a decade following a teaching career. Jennifer has conducted over a hundred investigations. Her ability establish trust and confidence in the integrity of the investigative process has led to the successful resolution of many situations and assisted in avoiding costly litigation.  She used her combined experience as a teacher and experienced employment attorney to develop Workplace Investigations Group’s training programs, including Title IX training for employees responsible for Title IX compliance and investigations.